Protection of heritage in Tunisia: mismanagement and legislative weakness

Summary

This policy brief addresses protection of heritage; a national sovereign wealth that must be protected and secured for current and future generations. The sustainable protection of heritage does not only depend on the type of heritage (tangible, intangible, natural, etc.) but also specific the threats it faces. Heritage is a unique resource and its disappearance is irreversible as restoration to its original state is, in most cases, almost impossible. Therefore, is it necessary to adopt more serious policies and laws to manage these assets? 

Introduction

The richness and specificity of Tunisian national heritage is the combined product of various historical civilizations. However, it is threatened by looting, vandalism, and marginalization. Tunisian history dates back to prehistory and the Stone Age, with the discovery of archaeological remains dating back to the Capsian civilization, in addition to the Carthaginian civilization, which was established in 814 BC, then the Roman period, the Vandal period , until the Byzantine reign which subsequently gave way to the advent of Islamic reign following three successive conquests, thus paving the way for several dynasties which ruled Tunisia for a long period, starting with the Aghlabid State, which made Kairouan a centre of political and cultural influence, then the Fatimid State after nearly a century of the Aghlabid era, then the Sanhajid State, then the Almohad State, and the Hafsid State which lasted from 1229 until its fall in 1535 AD, following which Tunisia became an Ottoman province in 1574 and experienced the Mouradite then Husseinite reign, the reign during which France declared the imposition of what it called a protectorate French about Tunisia in 1881, which lasted until 1956, the year of independence, thanks to the national movement.

Tunisian heritage is the amalgamation of each of these stages and it produced a rich legacy that requires protection. However, given the current situation, it is possible that this legacy will be neglected.  

The weak protections policies for national heritage the risks it faces

The narrow definition of “heritage” in Tunisian law:

Tunisian law defines heritage in different ways. Article 42 of the 2014 Constitution[1] provides that “The state shall protect cultural heritage and guarantee it for future generations”. The term heritage does not appear in its absolute sense but has been linked to the cultural term. Article 2 of Law No. 88-91[2] (1988) the creation of a national agency for the protection of the environment provides that “By environment, within the meaning of this law, we mean the physical mode including soil, air, sea, groundwater and surface waters (streams, lakes, waterfalls and salt plains) as well as natural spaces, landscapes, animal and plant species and in general all the national heritage”. This is a broader definition of “national heritage” which does not refer only to the cultural element or the tangible heritage, rather it has transcended this narrow view to include natural elements.

However, this broad definition of heritage does not appear in the 1994 Code for the protection of archaeological and historical heritage and traditional arts[3], which adopted a narrow definition of heritage, as is reflected from the code’s title, thus limiting the preservation mechanisms mainly to the tangible cultural heritage of monuments and archaeological sites. Traditional arts, which are part of the intangible heritage, are not valued in this code. This has led to the neglect and disappearance of many folk arts.

This policy brief reviews the laws on heritage protection, as Tunisian historical heritage faces a critical situation, and presents cases which confirm the urgent need for the state to intervene and play its role as protector of heritage.

2. Tunisian heritage is at risk of disappearing:

The threat to heritage is reflected in repeated attacks against it. This is diminishing its value due to the modification of its characteristics as well as its structure. For example:

The city of Hammam-Lif is full of historic buildings but most of them have been largely neglected, resulting in their deterioration and looting.

The Husseini Palace, also known as the Bey’s Palace, is in poor condition. This palace was built in 1750 by order of Bey Hussein Ben Ali Pasha Bey, but it became a squat inhabited by around 90 families. In 2016, it was classified as a ruin threatened building before being evacuated and closed at the end of 2020 because it was in danger of imminent collapse.

The Casino Palace, built during the colonial period, is a unique combination of European-Moorish and Andalusian architecture. For years, the palace remained closed despite its historical value. In April 2021, a few days ago,  a municipal council meeting brought  together experts and representatives of the national heritage institute to discuss the renovation of the palace. The recommendations from this meeting have not yet been carried out.

In 2014, on the island of Djerba, all the “Maamourat” domes, which had stood for thousands of years, were destroyed. Also a series of arson attacks that damaged several Zaouias, went unpunished as the authorities lacked the competence to protect sites or punish the vandals.

In Carthage, several building permits were awarded close to the archaeological site. These permits did not respect town planning restrictions so traces of Carthaginian or Roman mosaics can now be found on the doorsteps of some houses.

The area of the Sabra al-Mansouria archaeological site in Kairouan has been halved due to urban development.

Archaeological sites are looted by antique trading gangs and treasure hunters or subjected to random excavation campaigns.

Ichkeul National Park, classified as natural and cultural world heritage site, has been listed by the UNESCOUnited Nations Educational, Scientific and Cultural Organization World Heritage Convention[4] and the Ramsar Convention on Wetlands of International Importance[5] as well than within the UNESCOUnited Nations Educational, Scientific and Cultural Organization program on man and the biosphere[6]. This site has both natural and cultural features. The site boasts a unique ecosystem that alters between fresh and saltwater. However, this site’s heritage is at risk, due to the decline in the lake’s water alternation. Three dams were built over the rivers[7] which supply the lake with freshwater. This has caused a significant change in the ecosystem of the national reserve which also threatens the site’s UNESCOUnited Nations Educational, Scientific and Cultural Organization classification status. 

Problems related to non-compliance with heritage specificities

Marginalization of certain categories of heritage:

The emphasis on tangible cultural heritage as the primary model of national heritage has contributed to the marginalization of natural and intangible heritage.

• Natural heritage

Article 2 of the Heritage Protection Code[8] provides that “Cultural sites are considered to be sites that testify to the actions of man or to the joint actions of man and nature, including archaeological sites that present from the point of view of history, aesthetics, art or tradition, a national or universal value ”. This article includes the natural heritage among the elements of cultural heritage, however it does not define its characteristics and components, which has weakened the protective intervention for this type of heritage and made it a secondary element within the code despite its importance.

• Intangible heritage [9]

The conceptual development of the term “heritage” has produced new dimensions imposed by cultural globalization and social transformations. Intangible heritage is the result of successive cultures and civilizations having bequeathed symbolic systems and various skills. Intangible heritage includes:

1. Oral traditions and expressions, including language as a vehicle for the expression of intangible cultural heritage;
2. The arts and traditions of entertainment;
3. Social practices, rituals and ceremonies;
4. Knowledge and practices relating to nature and the universe;
5. Skills associated with traditional craftsmanship.

The Code for the protection of archaeological and historical heritage and traditional arts focuses on tangible heritage, only briefly mentioning intangible heritage in relation to traditional folk arts without the word “intangible” ever appearing in the text of the code. The National Heritage Institute has drawn up a list of intangible national heritage elements, but this list contains only 59 items[10]. Intangible heritage is of symbolic importance for peoples because of the sense of belonging that it gives them. But the hegemony of globalization and social transformations threaten the intangible heritage with oblivion and disappearance[11].

Risks associated with climate change

The effects of climate change, such as drought, water scarcity, epidemics, and natural disasters, also constitute serious threats to the natural and cultural heritage. Natural disasters pose threats to tangible heritage such as archaeological sites, as was the case when large monuments across the world were destroyed by floods. Climate change also threatens intangible heritage like traditional artisanal skills and knowledge. Drought, for example, is forcing pottery artisans to replace natural components, like clay and the plants used for dyes with chemicals that cause the product to lose its original value[12]. Pollution can also cause severe damage to tangible heritage. Preventive strategies are required to help protect heritage from such potential dangers.

These examples demonstrate that weak legislation, fragmented institutions, and the lack of financial resources have all resulted in the failure to protect Tunisian heritage.

Recommended solutions and strategies

Revise heritage laws

The current heritage laws have proven to be weak and inadequate at protecting cultural and natural heritage. Thus, their revision is of paramount importance. 

Substantial revisions to the Code for the Protection of Archaeological and Historical Heritage and Traditional Arts are an urgent necessity. The definition of the term “heritage” needs to be broadened and stricter rules for offenses committed against all forms of national heritage need to be adopted. The title of the code suggests a very limited scope, so it is necessary either to make revisions to include the intangible aspect of heritage, or to draft a specific law which details its aspects, its definition, and its legal protection.

The punishments for crimes of antiquities and historic sites have been made years but some issues have been overlooked particularly at the procedural level, for example. This requires strict laws against looters and offenders to bring them to justice. In cases of looting, the artefacts need to be restored, and in cases of damage caused to heritage sites  or construction on archaeological sites, laws relating to restoration need to be introduced. These should be in accordance with Article 83 of the Heritage Protection Code. Those who deliberately authorize construction on an archaeological site may be imprisoned for one month to one year and may be fined between one thousand and ten thousand dinars. The punishments, whether deprivation of liberty or pecuniary, must be reviewed because they are not commensurate with the gravity of the crime[13] and tangible heritage is the target of organized crime networks. Indeed, the organized trade in antiquities at the international level has become one of the most complex international crimes. Therefore, strengthening of international cooperation is required to the trade of stolen coins[14].

Despite its importance, natural heritage  has been ignored by the heritage protection code. Although it enjoys legal protection, in terms of environmental law, considering it as heritage gives it a different legal and symbolic value. Article 5 of Law No. 91[15] outlines the creation of a national environmental protection agency. This agency would review impact studies on the potential negative effects on heritage prior to the authorization of any industrial, agricultural or commercial entity which would present, depending on the nature of its activity, a risk of damage to the integrity of the archaeological and natural sites[16].

The implementation of a law on intangible heritage responds to the objectives of the 2003 UNESCOUnited Nations Educational, Scientific and Cultural Organization Convention. It would consider the specificity of intangible heritage regarding mechanisms for its protection and, if necessary, societal reintegration in response to any cultural changes. The list created by the National Heritage Institute needs to be reconsidered. A list which brings together all the components of Tunisian intangible heritage, in all its varieties distributed by region, with the possibility of adopting a common list for intangible heritage shared by more than one region, while determining the degree of threat as well as its sources, needs to be produced[17].

Institutional and financial support is the cornerstone of the heritage protection system

Regarding archaeological heritage, it is necessary to undertake periodical examinations of the condition of archaeological buildings to mitigate erosion and wear that has brought down many historical palaces. By providing competent human resources and focusing on the establishment of international cooperation mechanisms to carry out the scientific and technical studies and research required by the process of heritage protection and guarantee the sustainability of its integrity by specialists.

The restoration of dilapidated historical buildings requires significant financial resources due to the required technical maintenance procedures. Therefore, it is important to carefully consider the conditions and procedures for international assistance provided for by international agreements such as the 1972 World Heritage Convention[18] relating to the cultural and natural heritage. This consists of conducting studies, the call for experts, the support of technical equipment as well as the provision of donations and loans at low interest rates[19], without forgetting the need to re-examine the budget allocated to heritage protection. This reflects the lack of seriousness in dealing with the heritage issue.

The institutional structure of heritage protection often exacerbates and fragments its ability to provide protection. The heritage issue has remained dispersed among several ministries without clearly defining the mandate of each. Institutional and organizational weakness dominates the two administrations; the National Institute of Heritage and the Agency for the enhancement of heritage and cultural promotion. The heritage protection code must be revised to delineate the responsibilities of each institution and prevent further poor coordination as is currently the case.

Define a strategic vision relating to the national heritage protection policy

The dangers that threaten Tunisian heritage must be carefully identified and then, clear and detailed protection methods and strategies need to be developed for each type of heritage. 

• For tangible heritage, plans for the restoration and maintenance of dilapidated buildings with the goal of making them public tourist attractions should be developed so that these forgotten places are integrated into the cultural tourism national strategy. These should be fee-paying sites to help cover maintenance and restoration costs. It is also an effective way to preserve national memory and educate young people to appreciate Tunisian heritage. A heritage map for all the natural, cultural (or mixed) heritage sites that will be accessible to the public should be created on electronic platforms and in tourist areas to facilitate access for visitors.  Closed and undeveloped sites should be quickly developed to be included in this map.
• Develop the national feelings for heritage through a national strategy focused on awareness campaigns and heritage in all levels of education.
• Organize a national dialogue for the protection of heritage. All parties and civil society actors committed to defending heritage should discuss the issues raised in this policy brief and consider appropriate implementation strategies. 

Recommendations:

To the National Assembly of the People’s Commission for Youth, Cultural Affairs, Education and Scientific Research

• Review the Heritage Protection Code to restructure and regulate the institutional framework and define the tasks of each of the intervening institutions.

To the Ministry of Finance:

• Allocate the necessary financial resources to support the institutional framework and strengthen human resources during the examination of annual finance bills.

To the Ministry of Culture and Heritage Conservation:

• Propose a revised law on the protection of heritage that includes all three types of heritage and adopt stricter legislation proportional to the seriousness of the offense committed against national heritage.
• Adopt international cooperation treaties, in particular the Treaty on Cultural and Natural Heritage of 1972, to take advantage of scientific and technical expertise and provide part of the financial resources, namely grants and low-interest loans.
• Work with the Ministry of Tourism to support cultural tourism and develop a heritage map of all natural, cultural (or mixed) heritage sites that will be accessible to the public on electronic platforms to facilitate their access to visitors and rapidly develop closed and undeveloped sites to include them in this map.
• Work with the Ministry of the Environment to protect the natural and intangible heritage due to the importance of its role in achieving sustainable development and the preservation of natural resources, because traditional skills are environmentally friendly and are not polluting.

[1] Tunisia’s Constitution of 2014 https://www.constituteproject.org/constitution/Tunisia_2014.pdf [2] Law No. 91 of 1998 of August 2, 1988 on the Creation of a National Environmental Protection Agency, available at: https://bit.ly/2Ym9UR8 [3] Code for the Protection of Archaeological and Historical Heritage and Traditional Arts for 1994 https://www.wipo.int/edocs/lexdocs/laws/ar/tn/tn039ar.pdf [4]UNESCOUnited Nations Educational, Scientific and Cultural Organization , the text of the Convention on the Preservation of the Intangible Cultural Heritage, available at: unescoUnited Nations Educational, Scientific and Cultural Organization .org/ar/convention”>https://ich.unescoUnited Nations Educational, Scientific and Cultural Organization .org/ar/convention [5]Convention on Wetlands of International Importance Especially as Waterbird Habitat, 2 February 1971, available at: Convention on Wetlands of International Importance Especially as Waterbird Habitat [6]UNESCOUnited Nations Educational, Scientific and Cultural Organization , Man and the Biosphere Program, 1971, available at: https://bit.ly/2MDYFAM [7]Mallah River, Ghazala River, Douimes River, Joumine River, Sajnen River, and Tinja River. [8] Article 2 of the Heritage Protection Code http://www.inp2020.tn/ar/2020/05/16/code-de-protection-du-patrimoine-archeologique-et-histoire-et-des-arts-traditionnels/  [9] Article 2: Definitions, based on a 2003 convention for the safeguarding of intangible cultural heritage [10]Tunisian National Heritage Institute  National inventory of intangible cultural heritage. http://www.inp.rnrt.tn/index.php?option=com_content&view=article&id=181&Itemid=124&lang=ar [11] Wahid el Ferchichi (2018) Legislation on intellectual property and protection of intangible cultural heritage, University Publishing Center, Tunis Page 581.[12]  UNESCOUnited Nations Educational, Scientific and Cultural Organization (2011) List of Intangible Cultural Heritage in Need of Urgent Safeguarding. unescoUnited Nations Educational, Scientific and Cultural Organization .org/doc/src/17330-FR.pdf”>https://ich.unescoUnited Nations Educational, Scientific and Cultural Organization .org/doc/src/17330-FR.pdf [13] Widad Suhail (2018) Crimes archéologiques, Al-Atrash Tunis, page 92.[14]Ibid [15]The text of article 5 of law no 91 of August 2, 1988 relating to the creation of a national environmental protection agency. The original wording: An environmental impact study must be presented to the agency before the realization of any industrial, agricultural or commercial unit whose activity presents, by its nature or because of the means of production or transformation used or implemented, the risk of pollution or degradation of the environment.[16] Hamed Al-Ghadhani (2016) How long will the heritage conservation ministry continue to ignore heritage sector issues. Nawaat.[17] El Ferchichi (2018) [18]UNESCOUnited Nations Educational, Scientific and Cultural Organization . Basic texts of the 1972 World Heritage Convention. https://www.arcwh.org/ar/publications/basic-texts-of-the-1972-world-heritage-convention [19] Hamed Al-Ghadhani (2016) How long will the Heritage Protection Ministry continue to ignore the issues of the heritage sector? Kernel.